43 F. 75 -

43 F1d 75

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Case Text

iron, as iUs,to be, preferably; the spaces betWeen the offsets nre G8J1y the iron plates between the rollers,iwhicli a:re'preferably useti: 'by , Matthewson. The devices of both patents have the same mode Of cooperation. In each patent the devices are used in the cUfveOf a trainway cable tube, and form a practically continuous guiding BurfaM 'on 'a plane with the faces of the rollers. It is true that in Roberts' patent they are used. to guide a float around. the curve, while in the present patent they maybe used to guide a grip around the curve; but, as'DC) ment ofform, size, weight, movement, or detail of, construction 'enters into the characteristics of the object to be l!;uided, the circumstance that one of them is a float, and the other a grip, is whoUy immaterial. The bill is dismissed.

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PATE'lTS ,POR

{(]ircuitCQttrt; 8.D. New York. July 12, l8OO.)
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Letters patent No. granted July P, 1878, to Henry Tibbe for a pIpe made of corn-cob, the interstices of which are filled from the outside with ¥l !lot invalid for want of invention. ' .' . . The Jackson pipe, w4i94'\fas a. corn-cob pipe havi1J8 thll inside of lIow1ijned with cement, was Ilot'an antIcipation' of said patent. ' ".
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S. SAME-ANTICIPATION.

wbichtheinterstices are/illed with a s.!#ntially, for the.purpqses,8t't forth. OJ Uponfirilt impressioIol, it would seem'that the old Jackson pipe

stantially the same"thing as the pipe of the. present. patent: . Bur that was 'pipein,whit'h the imMe 'of the·bowl was lin'ed'with a plasticoement, to fire-proof it, whereas the pipe of'tbe patentisonlin which theinterstitles of the cob are filled with cement. These interstices,or'oollswhich hold the corn, ate on the exterior of the 'cob;'and in Borrieinstances, they could be'filled from the fnsma' Of the bowl, that would notbe a practical way of filling them, and when cobs oflarge<;:lrmredium size are used for the bow1i,llS they generallyare,'tbe be 'fined from the outside. The dressed<to,thos,e skilTedin the art, and the claim is;iobe a.s its language, naturally imports, asoneifor: II:' pipe ill' which ,the extei'idr ibteJ',§ticesJOf;tQeoobare filled with It cement. sup:. plies a sweet and porous receptacle .having

FEDERAL REPORTER,

vol. 43.

well understood by smokers to be desirable, and isa very differenttbing from one with a cement-lined bowl. It did not involve invention of any high order to make such a pipe; but there was enough to convert a poor article into a good one, and supply something to the trade which was new, and the merits of which were immediately and generally recognized. If the defendant chooses to sell the old Jackson pipe, he is at liberty to do so; but he has appropriated the rights of the complainant by selling thfl pipe of the patent, and must take the consequences. !. decree is ordered for an injunction and accounting.

The defendant to state whether he has-in his possession the machine which is alleged to be an infringement of plaintiff's patent, though the plaintiff has not previously made out a prima fac/,e case of infringement.

,:, In Equity. Witter <to Kenyon, for complainants. Shipman, Barlow, Larocque <to Ohoate, for defendant.
LACOMBE, J. This is an application to compel the defendant, called as a witness for the complainants, to answer two questions. The suit is for infringement of a patent for a hot-air pumping engine. The questions are cHrect,ed to the ascertainment of whether or not the defendant, S,ubsequent to the date of the patent, and prior to the commencement of the suit, had upon his premises, at No. 171 Avenue C, in this city, a hot:air pqp1ping engine. The manifest intention is to follow up these qUeRtions by others, showing that the engine which it is supposed he had and used was an infringinK machine. It is objected that this cannot be showll by the defendant's testimony until the complainants first, makes out a prima facie, case of infringement. Reference is made to a third circuit, (Oelluloid 00. v. OrQIM 00.) in which it is Said that a similar objection was sustained. As there was no opinion filed in .that case, however, there is nothing to show upon what ground that court. exclttded it. Certainly there is no rule. or practice in this circuit which would require the exclusion of the questions which have been certifj,edin this case. It is not claimed that defendant is the manUfacturerof the machine, and the simplest and·most efficient'way to discover had one is to ask him. The witness himself declined to answer ,ol,l the ground that the question was an "inquiry into his private .To sustain such an objection would no doubt be very venient. for, those who buy and use infringing machines,but no good doing is shown here.